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Ronald Smart D/B/A Paschall Electric v. International Brotherhood of Electrical Workers

May 13, 2011

RONALD SMART D/B/A PASCHALL ELECTRIC,
PLAINTIFF,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 702,
DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM & ORDER

I. Introduction

Now before the Court is defendant International Brotherhood of Electrical Workers, Local 702's motion for summary judgment (Doc. 64), to which plaintiff Ronald Smart d/b/a Paschall Electric has timely responded (Doc. 68). Defendant also replies to address new allegations in plaintiff's response (Doc. 69). Plaintiff's motion for summary judgment is also before the Court (Doc. 70), and defendant likewise has timely responded (Doc. 71). The Court previously granted defendant's partial motion to dismiss plaintiff's second amended complaint, except as to plaintiff's section 303 claim for secondary boycotting under the National Labor Relations Act, 29 U.S.C. § 187 (Doc. 57). Now defendant moves for summary judgment as to the remaining claim. Defendant argues that plaintiff fails to show he suffered any damages under § 187(b) as a result of defendant's conduct, and since damages are an essential element of plaintiff's claim, defendant is entitled to judgment as a matter of law. Plaintiff responds that he should not have to show damages with absolute precision, and he offers several new estimates of his damages.

Based upon the reasoning below, the Court finds that defendant is entitled to summary judgment as to plaintiff's claim. Accordingly, defendant's motion for summary judgment is GRANTED, and plaintiff's case is hereby DISMISSED WITH PREJUDICE. Plaintiff's motion for summary judgment is terminated as moot.

II. Background

Plaintiff Ronald Smart is an electrical contractor and was hired by John Stoecklin in January 2003 to perform electrical work for Stoecklin's company Extreme Sports, LLC (Pl.'s Dep. 32, Aug. 17, 2007). Plaintiff provided Stoecklin a proposal to do the work for $7,575 (Def.'s Ex. 1), Stoecklin accepted, and plaintiff worked on the job for a little over a week (Pl.'s Dep. 35). At that point one of defendant's representatives contacted Stoecklin and told him he needed to hire a union contractor or defendant would shut down the project (Pl.'s Dep. 35--37; Stoecklin Aff. 1, May 16, 2010). Stoecklin complied, dismissing plaintiff and giving the project to a member of defendant's union (Pl.'s Dep. 37). Stoecklin says the "whole scenario occurred within a couple of days . . ." (Stoecklin Aff. 2). "Completion of the job by all contractors was contingent upon the electrical work being done first," so the union contractor "came in and completed the job" (id.). Plaintiff presented Stoecklin with an invoice for $892.72 for work he had performed up to that point, including materials, and Stoecklin paid him (Pl.'s Dep. 38--39; Def.'s Ex. 3).

In plaintiff's deposition, he says he does not know how much of the original $7,575 would have been profit (Pl.'s Dep. 65). He explained that he does not know how much profit margin he typically builds into his jobs (Pl.'s Dep. 65--66). Some jobs did not earn any profit (Pl.'s Dep. 69:13--15). Further, he admits he may have submitted his proposal to Stoecklin "at no profit just to be busy" (Pl.'s Dep. 105:1--10). Plaintiff testified he did not know whether the Extreme Sports project would have yielded no profit, 10%, or 20% (Pl.'s Dep. 71). Defendant asked if anything could refresh plaintiff's memory: "I don't want down the line you to come up with a number at a hearing in this case. I want to know now if there's any way I can refresh your memory, anything you can go back home and get that will tell you whether there was any profit in this job . . . ," to which plaintiff replied, "Not that I recall" (Pl.'s Dep. 71:17--72:1).

Plaintiff refutes the above statements in his response brief. He says he had a long drive before the deposition and that defendants asked him about "several invoices and about several projects" (Doc. 68, p. 3). After the deposition, he says he looked more closely at the Extreme Sports project and found that the invoice he submitted to Stoecklin shows his profit was $38.50 per hour (Doc. 68, p. 3). He arrives at that figure by subtracting a $16.50-per-hour labor cost from the $55-per-hour labor charge on the invoice (Doc. 68, p. 3; Def.'s Ex. 3). Thus for 12 hours of work at $38.50 per hour, plaintiff concludes he earned $462 in profit (Doc. 68, p. 3). Moreover, plaintiff says that he had materials left over from previous projects, which he had obtained for free or below cost, and this would have increased his profit (Doc. 68, p. 4).

Plaintiff adds that there would have been at least a $4,500 profit on the Extreme Sports job because that was the difference between his bid and another contractor's bid (Doc. 68, p. 3, citing Stoecklin Aff. 2). "Probably more than that," he says, because he did work beyond what was in his bid, and Stoecklin had additional electrical work done by other contractors (Doc. 68, pp. 2--3). Plaintiff states that defendant influenced other prospective clients not to hire him, too, even though they liked plaintiff's bids (Doc. 68, p. 3).

III. Discussion

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938 (7th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Therefore summary judgment is appropriate against a party who cannot make a showing sufficient to establish an essential element of a claim on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. When cross-motions for summary judgment are filed, courts look to the burden of proof that each party would bear on an issue at trial and require that party to go beyond the pleadings and affirmatively establish a genuine issue of material fact. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 324); see also Walker v. Shansky, 28 F.3d 666, 670--71 (7th Cir. 1994) (non-movant must show "through specific evidence" that an issue of fact remains on issues for which he bears the burden of proof at trial).

Courts must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The same is true with cross-motions. Courts should "'construe all inferences in favor of the party against whom the motion under consideration is made.'" Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561--62 (7th Cir. 2002) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)). Courts do not weigh the evidence, but only determine whether a genuine issue remains for trial. See Lewis v. City of Chicago, 496 F.3d 645, 651 (7th Cir. 2007).

No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted."

Anderson, 477 U.S. at 249--50 (citations omitted); accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996). "[I]nferences relying on mere speculation or conjecture will not suffice." Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (citation omitted). Instead, the nonmoving party must present "'definite, competent evidence to rebut the motion.'" EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997)). "[U]ncorroborated ...


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